Council for Trade-Related htmects of Intellectual Property Rights (TRIPS)
NOTE: The first TRIPS TRM was held in combination with the normal review of China's TRIPS implementing legislation.  Most of the issues and concerns identified in this table relate to the normal review of China's TRIPS implementing legislation rather than to the TRM.  Only the EC submitted comments dealing with the TRM review; all others were addressed to the normal review of China's legislation.  Both are included on this table, however, because the Council for TRIPS TRM report to the General Council combined the discussions on both the TRM and the normal review of legislation.
Topics	No	Concerns	Concerned Members							Response by China
			AUS	EEC	JPN	USA	SWI	KOR	CAN
Trademarks	1	Legislation implementing the protection of geographical indications	X	X	X					X
	2	Definition of geographical indications	X	X						X
	3	Protection of geographical indications from other countries	X	X						X
	4	Number of geographical indications currently recognised and being considered for recognition by China	X	X						X
	5	Scope and nature of the protection for geographical indications in China				X				X
	6	Products other than wine and spirits subject to protection for geographical indications			X					X
	7	Provision establishing a link between the characteristics of an indication and its geographical origin		X						X
	8	Mechanism adjudicating between competing claims for recognition of a geographical indication	X							X
	9	Definition of a trademark	X							X
	10	Provision related to the licensing and assignment of trademarks	X							X
	11	Consideration of duration of use to determine a well-known mark		X						X
	12	Procedures of judicial review		X						X
	13	Provision related to "offer for sale"		X						X
	14	Provision related to protection of sound marks and olfactory marks		X						X
	15	Use of a trademark by a person other than the owner		X						X
	16	Whether resumption of use after a period of more than five years of non-use may lead to a revival of the exclusive rights		X						X
	17	Short time period to file a reply to an opposition		X						X
	18	Provision related to the use of registration symbols		X						X
	19	Additional protection granted by Chinese legislation to wines and spirits		X						X
	20	Safeguard provision for the cancellation of a trademark registration			X					X
	21	Consistency of the trademark law with National Treatment in Art. 3.1 of TRIPS			X	X				X
	22	Steps to ensure protection of well-known marks on the basis of national treatment and the need for effective enforcement of all marks			X	X				X
	23	Whether the commercial use of trademark is encumbered by special requirements			X					X
Trademarks	24	Consistency with the National Treatment principle of the requirement that the application for trademark registration by foreigners be handled by an agency designated by the State Administration for industry and commerce				X				X
	25	Penalties on companies who claim that their marks are well known without the approval by the China Trademark Office				X				X
	26	Exception to the protection of geographical indications				X				X
	27	Procedures for trademark owners to object to protection of third-party geographical indications				X				X
	28	Procedures by which nationals of WTO members may obtain protection for their geographical indications				X				X
	29	Different procedures for obtaining geographic indication protection between domestic and foreign owners				X				X
	30	Legislation implementing Article 23.2 of TRIPS						X		X
	31	Whether geographical names registered as certification marks have distinctiveness						X
	32	Difference between "liable to create confusion" and "misleading the public" in Article 13 of China's trademark law						X
	33	Conditions for the recognition of well-known marks						X
	34	Conditions for the cancellation of a trademark's registration						X
	35	How to ensure fair and non-discriminatory treatment of foreign well-known marks in trademark registration, administrative enforcement and criminal enforcement				X				X
	36	Legislative efforts to provide national treatment to foreign well-known marks				X				X
	37	List of well-known marks that are given enhanced enforcement by national provincial and local administrative and criminal enforcement agencies				X				X
	38	Steps to lower thresholds for well-known foreign marks on criminal enforcement				X				X
Copyrights	1	Provision related to the protection of performers, producers of phonograms and broadcasting organizations	X							X
	2	Remedies available to a person whose copyright has been infringed	X							X
	3	Assessment of the amount of damages to the loss of the right owner	X							X
	4	Clearance requirement by the National Copyright Administration in Beijing of the copyright enforcement actions by local copyright bureaus involving foreign right holders		X						X
	5	Provision related to the retroactive protection		X						X
	6	Provision related to exceptions and limitations to copyright and related rights		X						X
	7	Whether infringement will be prosecuted at the initiative of the public prosecutor or the copyright holder has to file an application if an infringement constitutes a criminal offence		X						X
	8	Circumstances for an infringement to be considered a criminal offence		X						X
	9	Proof of ownership in the application for preliminary injunctions and property preservation		X						X
Copyrights	10	Criteria applied to determine the amount of the compensation		X						X
	11	Procedures to deal with copyright piracy over the Internet		X						X
	12	Exception or exemptions of the NT & MFN treatment			X					X
	13	Forms of protected works			X					X
	14	Provisions for the protection of "expressions of folklore"			X					X
	15	Whether the right of distribution would be exercised to the copy or reproductions of a work which have been put in circulation in foreign country			X					X
	16	Details of other rights which shall be enjoyed by copyright owners			X					X
	17	Provisions for the protection of the right of communication through information networks			X					X
	18	Different procedures applied in the case of public copyright infringement between domestic cases and cases involving foreign companies			X					X
	19	Limitations on the scope of the recompilation exception in Article 17 of the Computer Software Regulations				X				X
	20	Whether the right of reproduction in Article 10 of China's copyright law includes temporary copies				X				X
	21	Application scope of the provision on compulsory licence for textbooks				X				X
	22	Exclusive rights of broadcasting granted to authors			X					X
	23	Criteria concerning "justifiable extent" in Article 22 of the Copyright Law			X					X
	24	Meaning of "the copyright owner has declared that such exploitation is not permitted" in Article 39 of China's Copyright Law			X					X
	25	Court-like judicial procedures to decide the amount of remuneration in the absence of agreement about the remuneration under Art. 42 & 43			X					X
	26	Difference between "a cinematographic work to which are assimilated works expressed by a process analogous to cinematography" and "video- recording" in Art. 46(8)			X					X
	27	Reason for no right to a single equitable remuneration for the use of phonograms for broadcasting to phonogram producers under Art 41 of China's copyright law			X					X
	28	How to make a ruling within forty-eight hours			X					X
	29	Progress on the new enforcement regulations of the Copyright Law			X					X
	30	Functions of judicial interpretation			X					X
	31	Progress on the recommendation that the judicial authority make necessary adjustments to lower the thresholds for criminal copyright violation			X	X				X
	32	Whether the unauthorized creation of a copy of a copyrighted work in the temporary memory of a computer in China infringes the reproduction right				X				X
	33	Activities permitted without the permission of the right-holder by Art.17 of China's Regulations for Computer Software Protection				X				X
	34	Application of Art. 23 of China's copyright law concerning compulsory license for textbooks				X				X
Patents	1	Protection of inventions violating Chinese laws or social morality		X	X	X				X
	2	Exceptional cases for waiving the obligation to obtain authorization from the right holder prior to the grant of a compulsory license		X						X
	3	Provision related to limitation of the exploitation of the compulsory licence		X						X
	4	Term for the submission of legalized documents when Paris Convention Priority is claimed		X						X
	5	Consistency with the National Treatment principle of the requirment that patent applicants obtain a patent right in China through a patent attorney designated by the Chinese government			X					X
	6	Timeframe for the grant or registration of a patent			X					X
	7	Consistency with TRIPS of the requirement that interested parties discuss the conflict over a patent before seeking a remedy			X					X
	8	Provisions on procedures to preserve relevant evidence in the case of an infringement			X					X
	9	Definition of novelty and its consistency with TRIPs			X					X
	10	Consistency with the National Treatment principle of the requirement that any assignment of the patent right to a foreigner be approved by authorities under State Council			X					X
	11	Provisions implementing TRIPS related to the grant of compulsory licenses				X				X
	12	Term of protection for patents granted prior to 1992				X				X
	13	Whether process inventions that facilitate the conduct of business are eligible to be patented if they are otherwise novel, involve an inventive step and are industrially applicable				X				X
	14	Exceptions to the patent protection for inventions					X	X		X
	15	Whether importation of patented products is considered as "working" a patent					X			X
	16	Consistency with TRIPS of the provisions on the grant of compulsory license					X			X
	17	Provisions on the principle of the reversal of burden of proof in a process patent litigation					X			X
	18	Definition of "practical applicability" in Article 22 of the Patent Law						X		X
	19	Protection of micro-organisms under the Patent Law						X		X
	20	Conditions for permitting compulsory licenses						X		X
	21	Consistency of Art. 63 of the Patent Law with Art. 30 of TRIPs						X		X
	22	Legislation implementing Art. 34 of TRIPs concerning the burden of proof						X		X
Layout Designs of Integrated Circuits	1	Notification of relevant legislation		X						X
	2	Protections afforded to discretes as part of semiconductor layout design protection				X				X
	3	Organization in charge of protection of IC layout designs						X		X
	4	Number of layout designs registered up to now under Regulations on the Protection of Layout-Designs of Integrated Circuits						X		X
Industrial Designs	1	Protection of textile designs		X						X
Protection of New Varieties of Plants	1	Notification of relevant legislation		X						X
	2	Consistency with the National Treatment principle of the requirement that assignment of the variety rights to a foreigner be approved by the examining organs			X					X
Biotech	1	Intellectual property protection for biotechnology inventions	X							X
Enforcement	1	Whether decisions taken by the Trademark Review and Adjudication Board will be open for judicial review by the specialized IPR courts		X		X
	2	How to authorize judges to order production of evidence by the opposing party		X						X
	3	Provision authorizing judges to order a defendant to desist from an infringement		X			X			X
	4	Provision authorizing judges to order the payment of the right holder's expenses by the infringer		X			X			X
	5	Provision authorizing judges to order that infringing goods are placed outside channels of commerce or destroyed		X			X			X
	6	Provision authorizing judges to indemnify a defendant in the event of abuse by the plantiff		X						X
	7	Competent authorites who receive requests from right holders for an application to suspend the release of counterfeit goods by the customs authorities		X						X
	8	Implementation of Art. 42 and 43 of the TRIPS in the judicial rules of civil procedures		X						X
	9	Measures of interlocutory injunction and property preservation		X						X
	10	Scale of damages to compensate for the injury resulting from an infringement		X			X			X
	11	Whether the amounts of monetary fines and compensation for damages are effective remedies to deter further infringements			X					X
	12	Criteria to decide the amount of damages the infringer should pay the right holder			X					X
	13	High thresholds for bringing a criminal case		X						X
	14	Revision of the Regulation Governing Customs Protection of IPR		X						X
	15	Whether the right holder and the consignee have the right to inspect the goods seized by Customs		X						X
	16	Provision regarding the security paid by the IP owner		X						X
	17	Provision regarding the compensation because of wrongful detention of goods		X						X
	18	Provision regarding ex-officio actions		X						X
	19	Provision regarding disposal of counterfeit trademark goods in Article 46 and 49 of TRIPS			X					X
	20	Provisions related to criminal actions and remedies to combat counterfeiting and piracy			X		X		X	X
	21	Functions of administrative organizations in charge of enforcement			X		X			X
	22	Provisions to implement border measures in Article 51 to 60 of TRIPs			X					X
	23	Status of proposed revisions to the 1995 regulations on border measures for IPR protection				X				X
	24	Measures to deter repeating infringements			X					X
	25	Measures to prevent localism which impedes IPR enforcement			X					X
Enforcement	26	Whether China has a different attitude towards infringement as between domestic and foreign companies			X					X
	27	Whether there is any right like the claim for the infringement goods destroyed			X					X
	28	Production order to the party in lawsuit against alleged infringement on patent right & measures taken when undisclosed information is contained in the document			X					X
	29	Status of the implementing rule regarding relief for copyright infringements				X				X
	30	How China intends to permit plaintiffs to prove subsistence of copyright in the light of Berne Conventions' prohibition on formalities				X				X
	31	Recommendation to China's judicial authorities to lower the threshold for initiating and prosecuting IPR criminal cases				X				X
	32	Statistics in enforcement of IPR laws and regulations				X				X
	33	Cases of criminal copyright prosecutions and convictions by China under other provisions of Chinese law, such as illegal business operations				X				X
	34	Legislative and enforcement efforts to coordinate administrative, civil and criminal enforcement				X				X
	35	How the Chinese legislation meets the requirement of Article 41 of TRIPS					X			X
	36	Civil judicial procedures and civil remedies available to right holders allowing for effective action against acts of counterfeiting and piracy					X			X
	37	New initiatives to improve IPR enforcement					X			X
	38	Obligations of right holders in the administrative procedures concerning IPR enforcement			X					X
	39	Scope of criminal punishment stipulated in Art 21.7 of the Criminal law			X					X
	40	Meaning of "where the act also prejudices the public interest" in Art. 47 of the Copyright Law			X					X
Undisclosed Information	1	Definition of undisclosed information		X
	2	Defined period of time for the protection of undisclosed information		X				X		X
	3	Provision implementing Article 39.3 of TRIPS		X
	4	Provision for protection of undisclosed information under Art. 39.2 of TRIPs			X					X
	5	Protection of undisclosed test data and other data submitted to Chinese authorities for market approval against unfair commercial use and disclosure		X	X	X	X	X		X
	6	Effects of laws existing in China other than the laws identified in the WPR on the protection of trade secrets				X				X
	7	Provisions on the protection of traditional Chinese medicine				X				X
	8	Difference between "practicality" in Art.10 of the Unfair Competition Prevention Act and "commercial value" under Art 39.2 of TRIPS						X
Right of appeal	1	Agency to which final decisions of patent and trademark offices are appealed				X				X
	2	Whether China's IP courts can entertain both validity and infringement issues in the course of an infringement action				X				X
	3	Panel of Chinese courts authorized to hear criminal IP cases				X				X
Sources:
Submissions from the EC: IP/C/W/361; IP/C/W/361/Add.1; IP/C/W/371 (TRM submission)
Submissions from Japan: IP/C/W/362; IP/C/W/362/Add.1; IP/C/W/362/Add.2
Submissions from Australia: IP/C/W/364
Submissions from the US: IP/C/W/365; IP/C/W/365/Add.1
Submissions from Canada: IP/C/W/366
Submissions from Switzerland: IP/C/W/372; IP/C/W/372/Add.1
Submissions from Korea: IP/C/W/380
China's written responses: IP/C/W/374; IP/C/W/374/Add.1; IP/C/W/374/Add.2
Committee report: IP/C/26
Committee meeting minutes: IP/C/M/37/Add.1
Notes:
1. "X" means that the member raised the concern in its written submission or China responded to the concern in its written submission.  However, China did not respond to any TRM-related issues in writing.  China's written responses were addressed to questions raised in the normal review of China's implementing legislation.